UPDATE: Second jet boat lawsuit dismissed; Williams to appeal

by jmaloni

Wed, Jan 18th 2012 02:25 pm

UPDATED FRIDAY AT NOON.

by Joshua Maloni

State Supreme
Court Justice Richard C. Kloch Sr. has dismissed the second lawsuit filed by
developer Jerome Williams and Lewiston Management Group against Whirlpool Jet
Boat Tours and the Village of Lewiston.

The lawsuit,
which was filed March 21, 2011, questioned the validity of an agreement between
the village and WJBT. It asserted the Village of Lewiston violated Section 51
of general municipal law and was in violation of the public trust doctrine. The
plaintiffs claimed a 2002 lease between the village and WJBT President John
Kinney violated easement requirements, and inferred trustees illegally granted
said lease. This action, the suit alleged, resulted in the "waste of public
property" alongside Water Street Landing on Water Street, where WJBT operates.

In his decision
dated Jan. 13, Kloch wrote, in part, "Plaintiffs claim a waste of property
which imperils the use and enjoyment of the waterfront. Nothing could be
further from the truth."

Kloch wrote the
jet boat "rides provide a view of the Niagara Gorge and rapids that would
otherwise be unattainable."

He added, "even if the Lewiston Jet Boat tours were to stop, the Jet Boat would continue to operate from its Canadian location. The Canadian launch facility is further downriver, meaning Jet Boat excursions from that location would be longer and therefore presumably, louder. Plaintiff's (sic) were not able to submit any material which raises a question of fact that the lease is a wasting of public property or in anyway deleterious to the environment or ecology.

"Curtailing or prohibiting the Jet Boat from the Lewiston location would merely move this tourist generating attraction from New York to Canada."

With regard to
Section 51, Kloch explained the state of New York granted an easement to the
Village of Lewiston for the use of the land in question "for the purposes of
developing and expanding the Village's waterfront and waterfront activities
(Kloch underlined that statement). That's exactly what they did."

"The easement
was made pursuant to (section) 75 of the Public Lands Law and the lease from
the Village is specifically authorized and allowed by the easement."

John
Bartolomei, the attorney representing WJBT, filed a motion to dismiss the
second lawsuit in November 2011. Kloch dismissed the first lawsuit on March 21,
2011. In that case, the plaintiffs claimed the Village of Lewiston's November
2010 sale of 197.23 feet of Water Street property to Whirlpool Jet Boat Tours
for $1 was illegal and unconstitutional.

In dismissing
the second lawsuit, Kloch wrote, "It appears, from oral arguments, that the plaintiffs
resent the Jet Boat spoiling their view of the Niagara River," and "have some
undefined animus toward the Jet Boat operation."

"I don't
believe this was an environmentally driven lawsuit," he added. "I think that's
apparent. It was apparent with the judge. It was apparent with the village, and
it was apparent with Mr. Kinney and Mr. Bartolomei."

Jesella said he
understood "the honest concerns" of residents who spoke in favor of the plaintiffs,
but "I think this is the only way the judge could've answered (the motion to
dismiss)."

Williams was out of town, but his daughter, Bridget, said he would continue to fight.

"Obviously, we're disappointed," she said Thursday. "We're going to appeal this decision. We don't think the judge considered all aspects of this case."

In a letter to Kloch dated Nov. 29, 2011, obtained
Friday by the Sentinel, Jerome Williams said the jet boat tours produce "destructive
wakes," squealing loudspeakers and "the roar of the engines punctuating the
enjoyment" of the waterfront for residents and recreational boaters.

"The Whirlpool Jet Boat operation jeopardizes the
quiet enjoyment of the Lower Niagara River," he wrote. "Potentially limitless growth of this operation could mean declining
property values and hesitancy on the part of citizens to invest in their
waterfront property. It could mean buses roaring down Center Street in our
village to take people to the Jet Boat, and then roaring straight back out."

In response to news of the appeal, Kinney said, "This is the type
of situation that keeps Western New York mired in the economic condition we're
in."

He said the lawsuits and appeal are "delay tactics for the
sake of delay."

In November 2010, Kinney said the new headquarters would provide "a
very clear and distinct entrance to the jet boat tour operations," which is
presently connected to a series of doors leading into Water Street Landing.

"We're trying
to create economic vitality in the village," Kinney said Thursday. He said a
new headquarters would result in construction jobs, more hotel/motel room
stays, and more tourists shopping and dining in Lewiston.

Kinney also
said a new headquarters would increase the tax base in the village.

"All that is
being put on hold," he said.

Without the
lawsuits, Kinney said the new headquarters would have debuted this spring. Now,
"There is no way this is going to happen for the 2012 season."

He said the
legal action "ultimately hurts the taxpayers of the village," and said it's the
residents of Lewiston who have to foot the bill for the village's defense in
court.